2015 CFOG Essay Contest First Place Winner – Alexis Tatore

2015 First Place Winner
Alexis Tatore
Greenwich High School
Teacher: Aaron Hull

Are online threats of violence, such as wild rantings against an individual on Facebook, protected free speech under the First Amendment? Or are such threats crimes that should be prosecuted?

On August 27th, 2013, 655 students started their first day at Greenwich High School. The next day, only 654 would return. August 27th marked the date when Bart Palosz committed suicide after breaking down from years worth of cyberbullying.

Everyone knew Bart was bullied. In middle school, students slammed his face into a locker and the harassment soon moved online. By July, Bart hauntingly posted on his Google + account, “Does anyone know if you can light a 12 gauge shotgun shell with a lighter?”

Despite this, by the end of the investigation, Greenwich Lt. Kraig Gray remarked, “Our investigation did not uncover any articulation by Bart as to why he took this particular action.”1

Our grade was shocked: we saw the harassment with our own eyes, and yet no one was prosecuted. How could the words that drove him to death be protected?

Online threats remain a complicated crime, but they’re far from a victimless crime. With an evolving framework of law, the country needs to extend its framework to the online community. Justice Holmes redefined the limits on the First Amendment with his famous opinion in Schenck v. United States .2 If one were to take an emotional, vulnerable teen and shoot them down with degrading messages, how is that any different from shouting fire in a crowded theater?

The crux of this issue is whether posting incites imminent danger. As I type, a potentially groundbreaking case, Elonis v. United States , sits on the Supreme Court Justices’ desks, awaiting a decision to declare what constitutes a “true threat” online. The plaintiff, 3 Mr. Elonis, posted violent rap lines threatening his exwife. He calls the lyrics art; she calls them threats.

In the past, the courts have ruled that seemingly threatening online content can be merely ephemeral.

When Gilberto Valle was arrested for sending his fantasies of eating women, a judge overturned the conviction by reasoning that he was expressing a dark fantasy, not demonstrating an intent to act.4

Yet, judges must often walk on a tightrope to distinguish such feelings, swaying with each step due to an apparent threat but unclear evidence. In today’s world, the line can become even thinner considering the difficulty to convey tone, nonetheless intention, in an email.

The Supreme Court has attempted to decipher the intentions of the alleged First Amendment violators. In Virginia v. Black , the Court ruled that a Virginia statute could not base cross burning on prima facie evidence.5 This ruling can be extended to the case of Elonis v. US .

Surely, Mr. Elonis’ twisted lyrics detail violent actions, but he can’t be convicted based off of apparent intent alone. According to Mr. Elonis, he was only expressing his art form and asked his Facebook friends, “I’m willing to go to jail for my Constitutional rights are you?”

To clear the blurred lines, the term “fighting words” was coined in Chaplinsky v. New Hampshire to describe words which spur lawless activities by their very utterance.6 The Justices asserted that such fighting words contributed nothing to the expression of ideas and carried no social value and to extend this thought to evolving law, demeaning wild rantings offer little social value.

The court of law should approach online threats of violence, whose cold words echo in the minds of victims, for exactly what it is: bullying hidden behind a screen. A computer cannot serve as a cloak. When malice is doused with fighting words, online threats should face the same prosecution as would public speech for a more secure, solicitous society.

4 Bazelon, Emily. “Do Online Death Threats Count as Free Speech?” The New York Times. Last modified November 25, 2014. Accessed March 30, 2015. http://www.nytimes.com/2014/11/30/magazine/doonlinedeaththreatscountasfreespeech.html.

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